PART= S ) Delaware and Hudson Railway Company
 TO Ti-y ) and
 DISPUTE ) Brotaerhood of :.iaintenance of ?Pay Employes

 QUESTION Are the eighteen (1 G) crossing watchmen
 AT ISSUE: (identified in Attachment "A" to our
 notice to :.;essrs. ?Iiltz and Leighty and
 identified within tile '2mployes' State
 ment of Facts" of the Eraployes' e:: pa):te
 submission) entitled to be compensated
 at the rate of their compensation guarantee,
 as provided for in Article IV of the
 February 7, 1965 Agreement, on and sub
 sequent to the date shown for eac_1'
 OPINION Claimants in this case, who are Crossing S7atca-acn ,
 OF BOARD: each refused or failed to accept a temporarv assign
 ment as a Trackman. Although such assiTnmc nts cross
 seniority lines, they do not cross craft lines. As each ClaLmant
 declined the assignrient, Carrier removed him from the list of pro
 tected employees, pursuant to tile February 7, 1965, Agreer:e nt.

 Article II, Section 1, provides, in part, as follows:


Article II, Section 3, contains the fol l owin sentence:

                  ITllen a protected employce is entitled to Co:apensa~ion wader t':1is A~.:,:ce::,C::t, he may the used 1n accG=L'3a,1Cc wit:l c:,isting Seniority rule:: ZCr vaca:-ion relief, holiday vacancies, or sic::

                                          l

                                      ATi1o.D .,0. 1cS

                                      Case :,'o. ..;-1J-.~


                  relief, O;- for ally otilc'i -i:!^'^::G'~ ar" asslgniaelhts whlcil do riot require t::e crossing of craft lilies.


Each of tile men involved eras a prot(.cced c:::~1c'. ~.e, entitled t0 Ooilpellsatior, under tile Agree:n^_nt. Fee,-. was,
 rc_r.'~-rcc to accept the assig:hnellt, if it accorded with e.:is-c :g se:::_c-_.::' rules, since it did not require crossing craft lilies. Cer ta~_: -', furloughed Traclct;ien, wita seniority ill that classification, M:ac be called initially to fill vacancies if they are avaS.1ah=.e and are required to be called under the rules. It would ;-,e impre-D=r under those circustances to substitute a Crossing T'?atchMal: -cr a furloughed Tracluaan in filling a temporary assignment as Trac!:man.

 The Employes' defense rested heavily upo_-1 t:=is obligation of carrier. ~rnile there were a number of furloug h:-d Tracl:men during the 1966-1 967 period involved, no specific evidence was ever submitted to Carrier or to this Committee establishillg that on the days involved in these cases -furloughed Trackman were actually available and required to be called pursuant to Article IV of the National Agreement of August 21, 1954. Carrier contends there was none.

 In any event, a fundamental question is ~.~het'ner each Crossing Watchman, who seemingly had no lcnc7.-7ledge of the availability of a furloughed Trac::man on tile particular day he was called, may properly invoke self-help and refuse tile assignment rather than accept it and grieve Carrier's action. In industry generally rectification of an employer's wrongful act is throuqh the grievance machinery rather than through the employee's refusal to perform an assignment.

 Although Carrier asserts in this case that none of tile furlcughed Trackman were required to be recalled, a 1e`-tcr dated Dece;ilbcr 10, 1968, which It submitted in a related case, ?·N-7-.. (Award 17o. 66), indicated that there v'ere furlOL;~--i':OG `i::'ae..men 4Jho had made themselves available t0 fill temporary vacancies. On five occasions ill 1966 and 1967 furloughed Trac:;men were co^,pensated on days when Crossing ,7atchLnen were improl:)c-rl1· called to fill temporary vacancies. Nowever, furloughed protected Crossing Watcll:'1en We:-a used for temporary vacancies as 1Srac::me., on 54 occasions and there was no claim that furlouqiled '~r~.c::-.^e:l were available and required to be called on those occasions. I-c

                          -2-

                                      AWARD 1,0. 169

                                      Case No. .:;J-iO-.J


is revealing that on the five Occasions where ciai;n.". C',._re sented en behalf of furloughed Trac'.unen, the furioH'::e :,a _o=:;:;en who were assigned to the temporary vacancy did accect the azsignment in contrast with the 18 occasiono involving tile= C1~i:~.~..n°~.

 Award No. 66 Of this COalmittee held that '~f_r^;' of the C1a,:,iants were properly removed from the protected 1-_st for refusing to accept temporary assignments as Trac?:;_en. i:e present case involves their claims for compensation for subsequent dates, and for the first time evidence of physical incapacity is offered. The claims must be denied. Since Carrier's action was sustained in the earlier case, each of tile three has lost his protected status. It cannot be restored for subseeuent periods. There would be no terminal point in litigation i°_ new evidence could be developed seeking to restore protected status, which had been previously denied on the evidence submitted.

 Of the remaining fifteen Claimants nine flatly refused the temporary assignments, according to the memoranCa of Track Supervisor Borst, which were submitted in evidence. Another Claimant, George Olelcszulin, did fill the temporary assignment for two days but then failed to return to work- and gave no reason for his continued failure to work. Mr. Ole?:szulin did not deny Track Supervisor Borst's allegations and at no time submitted any justification for his refusal to accept to assignment beyond the first two days. He also ceas-,5 to be a protected employee in accordance with Article II of tile Agreement.

 Joseph Osmansci was called by the telepone operator at Hudson to fill a track vacancy on May 11j 1°67. According to Track Supervisor Borst, Mr. Osmansl:i refused to accept the assignment. Although Mr. Borst himself did not speak with Mr. Os-.ansici, the veracity of the operator's report went unchallenged by Claimant on the property. It cannot therefore be challenged successfully on the ground of hearsay at this time.

 In each instance Carrier acted v,7ith dispatch i,:_mediately upon learning that a protected Crossing Watchman had declincd an assignment. It evidently did not investigate the reason for an employee's refusal to fill an assignment, even when re--son was given. Although Article II, Section. 1, states that an employee ceases to be protected if he fails to accept an assignment,

                          -3-

                                      I M ~ , U

                                        T2101D LI 0. " 9

                                      Case 1;o. !%.-10-


implicit in this obligation is that t::C failure mutt ._._ 17_i=^.'~'~. gOO6 Cause. in four instances it is held -"hat Cla_-,an1-=s :aC,'.' adecuate cause for their refusal to accept t:1e offer of rtC:',-
 pcrar' ^~ y the spccificd occasion.
      y e..plo._'` ,. on _.


At the time that Claimant Jcsenh J. Pao_":_ Lo -'-sed to accept. a teflporary, assignment as TraC':Cman offered Borst on June 1G, 1966, he gave no reason for his refusal. Indeed, he gave no reason during the initial nrocgress_:1g o= .__~ claim On the property. However, his claim along with tJOsC O= the others had been held in abevance pending di sposition c= case N0. i1U-7-.:''_.. Ifne parties had agreed on January 11., 19`~, that °C·:it:iin thirty (30y days following decision O n Case i·:'.-7-i, the parties will meet for the purpose of na:ing an effort to dispose of" the pending claims. tae parties duly met OP. ju_^.e .7, 19-09, a.,-,d then for the first time reference was made to tae p _·sical disabilitv of :,:r. Phone.

 Evidence of :-:r. Paone's physical condition co -sists of a phvsician's letter dated I·Iav 28, 1959, whic_1 states that he under"%·:cnt surgery O n July 3, 1961, and is u-: a-la-e t0 parfC= ^ manual labor. Althoug:1 this letter had not been s'.~..- . 17i tted prior to Carrier's decision t0 terminate i·'r . Paoae' .s prctec:..ad status, it nevertheless was availa.Ole during the ldiscussion on the property. The belated suu-aissic n of s:=ci: eVidence Ices not warrant imposing retroactive liabilit,· en Carrier, it did Justify his restoration to protected status a'-:d CO:;:~: SatilJ:'1 incident to that status, once Carrier was advised o= the reason for- Claimant's inah_.1ity to accept the assigiu,;ent.

 Or. Julv 10, 19GG, when Track Supervisor 3orst called
 :-:artin B. Carey to offer him an assign,,e_lt as a _-rac:._:-,a::, _._.
 Care'. fags net at home. _-it. Borst spo:-~e to .__. Ca_"ey_ .=ouse'.·:ce-;er.
 Care,,, neither wor::ed t:1C_' assgnment norcon.mun-Ic
 Borst. t.^ -d ~Ili__': _ -.
 BOrst. But there is no evict- ....lice that .10 had eve-.' reOCi~IOC: -~;1C
 mCssag·v' -~0:1: tnc hol.?sC::.CCTJsr. Apparent.',', Carr-_Cr ::lc:.C:`. _... _=-C=
 t0 asCCrtain wnC'%hcr its S1::1C messaC" C On th_s one- OccaS_On ::c_'
 ever .03C1; reC-^.3'v'Cd 11V i:r. Care%,. COnsequ°ntly t's1Cr0 -.s nJ C'_C'!C,~..:~
 t.:at ::e rC-f'usCG ail assic11MCat. Ail emn10vCC's roil"=C -._
 for wor::, 4Jncn there is n0 evidcnco t.7at ::C receivCCG noti-rear=^.::
 r
 Of it, is no t a ban S'is for term ii'latiCll Of p-"O'.=CCi-CC', ;"i:a'.:L;O. ___~
 Cbli,aticil to notif- rC-is with carrier, as CC`". - t-1 -0 to
 prove noti_catlon. flailt;ant %-iao not 'rCC?L1.::CCi ~~ p-G:'JC t_1'.'_'.: :1
 was not notified.
                                  AWAAD i:o. 16;

                                  Casc c: o. i.i.T-j_0-_,


According to i'raci_ SupCrviso-'_·O_:1'~.': ._.:;:C-~::
 du:':i d'a_ d Jul',,,- 10, 19 j, C.aren..:C Pi -' 1C l^:a .^-. C'~_C'~(:G
 ~te~'.~. l~ -iac a 'ec:cnorarl.
 as sign-nent as a Iraclcrnaa at r2hompson, Pa. Ti-.,c ; e:::o-anc·a:n states
 that :Ir. Pr inglc wo-filed O:1 July 11, althoug:1 11C "d16 173- roi.'arn
 to ~?Or::." Tile duration of tae aSS'c-n;ment 7..`', Un:::':Gl;'11. i;r. 3Grs.-
 l·!i"Ote teal: Mr. Prinule "told -me several wcci:S !a'.--r L-Ilat 1,,e was
 not able to d0 the Plod:. "

 Unli::e most of the O the='S, :I?:. Pringle :..'.d not refused 'ihe assic'nment out of -land. I?e did Undertake ii= and ceased only because of clail?lcd inability. LOSS Of pr~te~ted status should not have been imposed under these C1rC1:,:.^.:.'.=a:=CC . It was :1r. BOrst's memo itself which set forth 'she. rea~'Cn w_-1'yr
 Mr. Pringlc did 110t wor' beyond the one day . C Ca-rier .'.:':Cr;
 and did not challenge Claimant's assertion. `l'he'i-a 13 a d=f~erence
 between employees -·7110 On principle Simply refuse an aS.gn;;Gnt
 and one who gives his reason for it. Since Carrier did not
 question it., the reason given for nr. Pringle' s failure to ccn
 tinue to work should have warranted continuation of his p-ctected
 status.

 John 1?. Andrejko wac- denied conti nuatio^. of protected status when he refused a temporary assigjnnent as Trac:-man on i:arCh 16, 1967. Trac:c Supervisor Borst's me,,,:iora,-,dU.-:I -4-ated that. "mr. Andrejko had wor-c6 the night,be~cre and refused to accept this temporary assignment."

 Article II, Sections 1 and 3, do not presunposo that a protected employee loses that status if he fails to accept an assignment regardless of the reason for his failure. Nothing in the record indicates that !.Ir. And=ejj:o's e.:planation laci:ed validity or that it did not justify his declination o= the assignment.

                        A P? A It D


              The aas%,:er to the Question wit: respect to 144 of the 1S Crussinq Watclz::ea is 1~o. The answers to the Question _i.th respect to the others is as follows:


              :iar-in Carol', Clarence P-incjle, and jO:n Andrej:co are entitled to be cc.nl.)ensatcd

                          A?IA LSD NO. 10

                          Case No. :ir7-10-..


at the rate of their compensation guarantee, as provided for in Article 1-V of the February 7, 1965, Agreement on u.,. subsequent to the date shown for each.

 Joseph J. Paonc is entitled to be ccmpensuted at the rate of his compensa.ticn guarantee, as provided for in Article =V of the February 7, 1965, Agreement on and subsequent to June 5, 1969.

              Milton Friecman

              Neutral Member


New '_'orl:, New York Deccmac:r 24, 1969

                    . _6-

AWARD NO. 169
 (INTERPRETATION)
 ~, Case No. Ma-10-E
 PARTIES ) Delaware and Hudson Railway Company
 TO THE ) and
 DISPUTE ) Brotherhood of Maintenance of Way Employes

    QUESTIONS

    AT ISSUE: I - (a) Has the Brotherhood of Maintenance

    of Way Employes correctly interpreted

    Award No. 169 as sustaining the claim

    that Claimant John Andrejko is entitled

    to compensation _on and subsequent to

    December 1, 1966 and is he therefore

    entitled to now be compensated for the

    period extending from December 1, 1966

    to and including March 15, 1967?


                              OR


                  (b) Has the Carrier correctly interpreted

                  Award No. 169 as sustaining compensation

                  claims for Claimant John Andrejko ONLY for

                  dates on and subsequent to March 16, 1967

                  but not for any dates prior to March 16, 1967?


                  II - If neither of the above questions are susceptible to an unqualified answer, precisely what additional compensation (expressed in days or other time period) is Claimant Andrejko entitled to receive by virtue of Award 169


    OPINION

    OF BOARD: In its submission of the claim for John Andrejko in

    Case No. I4K-10-E, the Organization posed the question

    whether he, among a group of 18 Crossing Watchmen

    "identified in Attachment A," were entitled to compensation

    guarantee "on and subsequent to the date shown for each." Attach

    ment A listed the date for each claimant. In Andrejkko's case it

    was "12/1/66."

                                  AWARD NO. 169

                                  (INTERPRETATION)

                                  Case No. MW-10-E


During the original correspondence on the property Carrier had noted that Claimant would be allowed pay for the period now in question "less the number of days he worked for the CNJ." It had been Carrier's position in the original case that Claimant had lost his protected status in March, 1967, by virtue of refusing an assignment as Trackman. Although the correspondence had been attached to the Organization's submission, no reference to it was made by the organization. And Carrier's submission had merely noted an offer to pay Claimant for "time lost prior to March 16, 1967 in excess of time worked for the CNJ upon receipt of advice from the General Chairman as to time worked for the CNJ." Both parties' arguments were addressed to whether the 18 men had lost their protected status.

 Award No. 169, in deciding that case, held that Claimant's protected status had not been forfeited. The Award said that he and two others "are entitled to be compensated at the rate of their compensation guarantee, as provided for in Article IV of the February 7, 1965, Agreement on and subsequent to the date shown for each." The date shown in the Organization's submission for Claimant was 12/1/66. Thus the Award held that he was entitled to compensation from that date.

 Carrier now contends that since Award 169 was concerned solely with deciding the issue of Claimant's loss of protected status on March 16, 1967, when he failed to work as a Trackman, compensation for the period involved was not granted by that Award. It is true that issue was joined by the parties on the common thread connecting all 18 men, which was their assignments as Trackmen, and therefore the opinion dealt with that question.

 But it is also true that the organization had sought compensation for a protected employee which had been withheld from him. A carrier's failure to pay compensation due under Article IV for any reason or no reason may be submitted to the Disputes Committee, as was this issue. If no argument is made to support the reason given for non-payment, or if the argument

                          -2-

                                    AWARD NO. 169

                                    (INTERPRETATION)

                                    Case No. MW-10-E


is not deemed sufficient, or if it is not discussed in the Opinion, the specific direction to pay wages due from a certain date is no less final and binding.

 The original claim did not seek compensation beginning in March, 1967, but beginning in December, 1966. That is how the claim was filed. Nothing in' the record persuaded the Committee to modify the amount sought. Since the claim was upheld in its entirety, payment for the entire period when Claimant was denied compensation is due. The original Award must stand, and compensation is owed Claimant from December 1, 1966. The Organization's interpretation of the Award was correct.

                        A W A R D


              The answer to Question No. I (a) is Yes.


                          Milton Friedman

                          Neutral Member


Dated: Washington, D. C.
 January,z 7, 1972

 -3-
 0' a ILE 'u"~c,.A 0- u'~r~ LVVd=:1~ :,~.~-i.,."~ M 6'",
                                        'E ' -.: 21=-'e~v C,G~"a ;i 101 N S°


C. E. Leighty · Chairman
 Raiiway Labor Building · Suite 804
 400 First Street, N.W. · Washington, D. C. 20001
 Code 202 RE 7-1541

 Mr. C. L. Dennis r Mr. H. C. Crotty$," Mr. A. R. Lowry Mr. C. J. Chamberlain Mr. R. W. Smith

 Dear Sirs and Brothers:

 John J. PAcN-mzra < Treasurer
 Fifth Floor, VFW Building
 200 Maryland Ave., N.E. · Washington, D. C. 20002
 Code 202 547-7540

 January 5, 1970

 Subject: Dispute Committee No. 605
 Award No. 169
 (Maintenance of Way Case)

 I am enclosing herewith a copy of Award No. 169 signed by Referee Friedman on December 24, 1969. This was a very complicated case but I doubt that any dissent will be written.

 Fraternally yours,

 J 0

 Chairman!/ t
 Five CooperatinRaJi1Labor Organizations

 cc: Mr. L. P. Schoene
 Mr. F. T. Lynch